State v. Alewine

Citation474 S.W.2d 848
Decision Date13 December 1971
Docket NumberNo. 56094,No. 1,56094,1
PartiesSTATE of Missouri, Respondent, v. Thomas Arthur ALEWINE, Appellant
CourtUnited States State Supreme Court of Missouri

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Arch M. Skelton, Theodore L. Johnson, III, Springfield, for appellant.


Thomas Arthur Alewine was found guilty by a jury of burglary in the second degree and stealing. Sections 560.070 and 560.110 RSMo 1969, V.A.M.S. The jury stated their inability to asses punishment and the court sentenced defendant to two years on the burglary and two years on the stealing to run concurrently. Defendant appeals.

Defendant does not question the sufficiency of the evidence to sustain the conviction.

Defendant's point I involves the failure of the magistrate court to appoint a lawyer for defendant at the preliminary hearing; points II and III concern the actions of the court in overruling defendant's motion to suppress testimony of certain deputy sheriffs as to an alleged oral confession of defendant on the grounds that defendant did not waive the rights of which he had been advised; and point IV concerns the court's instruction as to the oral confession.

On Sunday, November 16, 1969, Mr. and Mrs. Harold Pyle discovered two containers with money belonging to their two sons were missing from their home. The containers held $155 in bills and six silver dollars. Defendant was arrested December 3, 1969, at 12:45 p.m. and taken to the Greene County sheriff's office where he was questioned by four deputy sheriffs and, according to the officers, defendant gave an oral statement admitting that he went into the Pyle home through an unlocked door, found about $155 in a bedroom and stole it.

The court held an evidentiary hearing on defendant's motion to suppress the testimony of the deputy sheriffs as to the oral confession and ruled that the statements given to the officers were given voluntarily after defendant was fully advised of his rights under the Miranda case; that defendant of his own free will waived all such rights and agreed to give an oral statement without any attorney being present; that the statement was not procured by coercion, threats, fear, or promise of leniency; that defendant did not request counsel, and overruled the motion to suppress. The court further stated that it would, if defendant so requested, instruct the jury in writing so to the voluntariness of the confession and as to the duties of informing defendant of his rights, and the waiver of rights including waiver of right of counsel at the interrogation. Other evidentiary matters will be set forth under the appropriate point infra.

Defendant's first point is that the court erred in overruling his motion to dismiss the information because he was not afforded counsel at the preliminary hearing in violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. In support of his position defendant places principal reliance on Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, decided June 22, 1970, and also cites United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which also pertain to the right to counsel.

The preliminary hearing in this case took place on December 17, 1969, prior to Coleman v. Alabama, supra. We have held that Coleman v. Alabama will not be applied retroactively in Missouri in the absence of a showing of prejudice. State v. Chapman, Mo., 465 S.W.2d 472, State v. Lahmann, Mo., 460 S.W.2d 559, State v. Caffey, Mo., 457 S.W.2d 657, and State v. Ussery, Mo., 452 S.W.2d 146.

S.Ct.Rule 23.03, V.A.M.R., pertaining to right to counsel at preliminary hearing is now in effect. It was not in effect at the time this hearing was held. Defendant urges that we should reconsider prior holdings to the contrary and now hold that the preliminary hearing in Missouri is a 'critical stage' of the proceedings and apply Coleman v. Alabama retroactively. We adhere to our previous holdings. The point is overruled.

We will consider points II and III together. Point II charges error in overruling defendant's pretrial motion to suppress the testimony of the deputy sheriffs as to the oral confession, and point III alleges error during the trial in the court's action in overruling defendant's objection to the trial testimony of the deputies concerning the confession. In both points defendant claims his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated.

The issue hinges on the question of whether the trial court erred in ruling that defendant did, prior to the giving of the oral confession, waive his right to remain silent and his right to an attorney.

Defendant cites Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, in support of his position and particularly the statement appearing in Miranda, 86 S.Ct. loc. cit. 1628, taken from Carnley v. Cochran, supra, that, presuming waiver from a silent record is impermissible, the record must show that accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. This court has so held. State v. McGee, Mo., 447 S.W.2d 270, 275.

However, with respect to waiver, an express statement that the individual does not want a lawyer or that he waives his right to remain silent is not required. What the prosecution must show is that the defendant was effectively advised of his rights and he then intelligently and understandingly declined to exercise them. State v. Hughes, Mo., 460 S.W.2d 600, 603.

Here, there is no question about whether defendant was advised of his rights. Admittedly, they were read to him, he read them, and he signed the document acknowledging receipt of the advice. Additionally, and significantly, there is no question about whether defendant, after being advised of his rights, understood the nature of the advice. On the motion to suppress defendant testified on direct examination, in part:

'Q. Did you understand what the people in the Sheriff's Department told you, that you had a right to remain silent and that you didn't have to talk to them?

A. Yes.

Q. You understood that from reading this document and from what they told you?

A. Yes.

Q. And did you also understand from what they told you that you had the right to have the advice of an attorney and that you had a right to talk to an attorney and to have counsel?

A. Yes.'

It would seem apparent that if, after receiving the appropriate warnings and and admittedly understanding their full import, the defendant confessed, that this would constitute a waiver of the right to remain silent and the right to have an attorney present. Miranda v. Arizona, supra, 86 S.Ct. loc.cit. 1628(52--54), State v. Hughes, supra, loc. cit. 603.

The crux of the controversy at hand arises from defendant's testimony next following that set forth supra.

'Q. Now, after signing this document, I'll ask you, did you tell the Sheriff's people what you wanted to do with regard to remaining silent? (Document refers to the statement of rights.)

A. I told them I wanted a lawyer.

Q. Did you tell them that you didn't want to talk to them?

A. I told them I did not wish to talk to them.'

The document was signed at 12:55 p.m. Defendant further testified the deputies continued to question him until about 6:00 p.m.; that he demanded a lawyer two or three dozen times; that one deputy threatened him by saying that they were going to get him this time one way or another. Defendant testified that the threat didn't work because he didn't confess to the offense. Defendant was twenty-five years old and had a tenth-grade education.

One cannot determine from defendant's testimony when the alleged confession was given, if at all, because he denies making any statements to the deputies.

Officer Boatman testified that he read the statement of rights to defendant and defendant confessed during the first part of the afternoon as opposed to the middle or latter part of the afternoon, and thereafter, until about 6:00 p.m. defendant was questioned about other burglaries; that defendant was not reluctant to talk about the offense; that defendant never said he wanted a lawyer present, but defendant did refuse to given a signed statement. Officer Wester testified defendant wanted to and was permitted to talk to his girl friend, Dianne...

To continue reading

Request your trial
49 cases
  • North Carolina v. Butler, 78-354
    • United States
    • United States Supreme Court
    • April 24, 1979
    ...(Me.1975); Miller v. State, 251 Md. 362, 247 A.2d 530 (1968); Commonwealth v. Murray, 359 Mass. 541, 269 N.E.2d 641 (1971); State v. Alewine, 474 S.W.2d 848 (Mo.1971); Burnside v. State, 473 S.W.2d 697 (Mo.1971); Shirey v. State, 520 P.2d 701 (Okl.Cr.App.1974); State v. Davidson, 252 Or. 61......
  • State v. Hamell, 37816
    • United States
    • Court of Appeal of Missouri (US)
    • October 18, 1977
    ...also mindful that the court is the trier of the facts it is its prerogative to determine the credibility of the witnesses. State v. Alewine, 474 S.W.2d 848, 853(6-7) Defendant testified that he was deprived of food from the time he was picked up until after the video statement was taken. Th......
  • State v. LaRette, 63569
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1983
    ...was effectively advised of his rights and he then intelligently and understandingly declined to exercise them.' State v. Alewine, 474 S.W.2d 848, 851 (Mo.1971). The determination of the voluntariness of a statement is made in the first instance by the trial court. The trial court must deter......
  • State v. White, 62324
    • United States
    • United States State Supreme Court of Missouri
    • October 13, 1981
    ..."defendant was effectively advised of his rights and then intelligently and understandingly declined to exercise them." State v. Alewine, 474 S.W.2d 848, 851 (Mo. 1971). At the suppression hearing the state offered into evidence the tape recorded statement and the testimony of Sergeant McDo......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT